O ne hour before dawn on March 19, law-enforcement officers in Little Rock, Ark., broke into a home to execute a search warrant.
Awakened by the loud crash of his front door caving in, the groggy homeowner grabbed a gun and left his bedroom to investigate. In the pre-dawn darkness, the man saw nothing but shadowy figures in his hallway.
With his wife standing inches away from him, the man fired a few shots at the feet of the intruders, hoping they would get the message and run. But the intruders swiftly returned fire, shot the homeowner in the head, and dragged his wife — still barefoot and in her nightclothes — outside. They locked her in the back of a car, where she spent the next four hours agonizing over her husband’s fate.
Bryan Malinowski would later die from his injuries.
This is not an uncommon story. Over the past few months, we at the Institute for Justice have received at least four calls from victims of similar pre-dawn military-style raids. But each has come from a different state, was conducted by a different agency, and was defended with different excuses.
Typically, critics of these police raids come from the political left. But in the case of Malinowski, the critics have come from the right. Republican congressman Jim Jordan of Ohio, at a recent hearing on the weaponization of the federal government, has called for police accountability and reform, while Democrat Stacey Plaskett, a nonvoting House delegate from the Virgin Islands, has defended the actions of police.
What changed?
Maybe it’s the kind of police? Here, the officers were agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Maybe the nature of the alleged crime underlying the raid? Here, the government argued that Malinowski was stretching the gun-show loophole to sell his firearms without a $200 federal firearms license.
Maybe it’s something else entirely. But it shouldn’t matter. What should matter is the Constitution, which prohibits unreasonable searches — and make no mistake, the evidence here strongly indicates this was unreasonable.
Officers did not wear body cameras, even though they were supposed to. Officers disabled the cameras at Malinowski’s home to evade detection. Officers showed up in full SWAT gear in a pre-dawn caravan of vehicles.
Officers knew Malinowski was a middle-aged airport executive with no criminal record. Officers knew when he was and was not home (because they had put a tracker on his car).
Officers knew it would have been easier and safer to execute the warrant in broad daylight when Malinowski was at his desk job at the Little Rock airport. Yet officers created the most dangerous circumstances possible, and now a family in Arkansas has been destroyed.
If the Founders of this country were here, they would tell us that the actions of the officers are what matter — not the agency where they work or the policies they attempt to enforce. Guns, drugs, speech, or pure mistake, the same Fourth Amendment applies and demands reasonableness.
When police barge into a home after sundown, cameras off and guns blazing, shooting a groggy man dead, they should be held to the same standards, no matter if they work for the ATF, U.S. Customs and Border Protection, or the local police department.
To fix this disparity, Congress must ensure that there is a consistent accountability framework for all officers at the local, state, and federal levels.
Right now, there is not.
The civil-rights statute that allows constitutional lawsuits in federal courts — 42 U.S.C. § 1983 — covers only acts committed “under color of” state or local law, but not federal law. As a result, state and local officers can be sued when they violate the Constitution (though they are still shielded by special protections such as qualified immunity), but federal officers operate in a Constitution-free zone.
As conservative judge Don Willett has pointed out, “It smacks of self-dealing when Congress subjects state and local officials to money damages for violating the Constitution but gives a pass to rogue federal officials who do the same.”
Too true.
It is time for Democrats and Republicans to agree on something fundamental to this country — that our Constitution applies equally to all government officials, regardless of the policy goals they serve. Legislators should cross the aisle and amend the civil-rights statute to ensure that police acting under color of federal law are held to the same level of scrutiny as their state and local counterparts.
If Democrats and Republicans mean what they say when they express outrage at needless police violence, this would be a good way to start solving the problem.
Anya Bidwell and Patrick Jaicomo are lawyers with the Institute for Justice and leaders of IJ’s Project on Immunity and Accountability. They litigate immunity issues in state and federal courts, including the U.S. Supreme Court.